Citation Nr: 1338720 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-14 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a massage chair, a desktop computer, a desk, and a recumbent exercise bicycle under the provisions of an independent living program pursuant to Chapter 31, of Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from February 1984 to May 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 of the Department of Veterans Affairs (VA), Regional Office (RO), located in Phoenix, Arizona. In conjunction with his appeal, the appellant provided testimony before the undersigned Veterans Law Judge (VLJ) via a hearing in June 2011 at the Phoenix RO. A transcript of that hearing was prepared and has been included in the claims folder for review. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claims that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant and the accredited representative have not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2013) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. FINDINGS OF FACT A massage chair, a desktop computer, a desk, and a recumbent exercise bicycle are not shown to be necessary or vital for the appellant to maintain maximum independence in daily living. CONCLUSION OF LAW The criteria for entitlement to a massage chair, a desktop computer, a desk, and a recumbent exercise bicycle under the provisions of a Title 38, United States Code, Chapter 31, independent living program have not been met. 38 U.S.C.A. §§ 3104, 3109, 3120 (West 2002 & Supp. 2013); 38 C.F.R. §§ 21.160, 21.162 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) describes the VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable to cases where the statute at issue is not found in Title 38, United States Code, Chapter 51 (i.e. the laws changed by the VCAA). Barger v. Principi, 16 Vet. App. 132 (2002). As the statute at issue in this matter is not found in Chapter 51, but rather in Chapter 31, the VCAA is inapplicable. Nevertheless, effective August 5, 2009, 38 C.F.R. § 21.32 was revised and 38 C.F.R. § 21.33 was added which, respectively, set forth VA's duty to notify claimants of information and evidence needed to substantiate a vocational rehabilitation claim and set forth VA's duty to assist claimants in obtaining evidence and information necessary to substantiate such a claim. These regulations are substantially similar to the VCAA implementing regulations. Review of the record reveals that all applicable notice and assistance has been provided. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. The Board finds that the appellant had actual knowledge of what evidence and information is required to substantiate his claims and that all reasonable efforts have been made to acquire such evidence and information. The Board notes that the appellant's medical claims file was not made available and only the vocational rehabilitation file and the Virtual VA system was considered in this case. The evidence available to the Board, however, which included medical records and lay evidence regarding medical treatment, was more that sufficient for the purpose of determining the question at hand. VA law provides that a veteran is entitled to a program of rehabilitation services if the veteran has a service-connected disability of 20 percent or more, and is determined to be in need of rehabilitation to overcome an employment handicap. See 38 U.S.C.A. § 3102 (West 2002); 38 C.F.R. § 21.40 (2013). If it is determined that a veteran has a serious employment handicap resulting in substantial part from a service-connected disability and that achievement of a vocational goal is not feasible, the veteran shall be entitled to a program of independent living services and assistance designed to enable such veteran to achieve maximum independence in daily living. See 38 U.S.C.A. § 3109 (West 2002); see also 38 U.S.C.A. § 3120 (West 2002 & Supp. 2013). Services and assistance which the Secretary may provide pursuant to an independent living program include services necessary to enable a veteran to achieve maximum independence in daily living. 38 U.S.C.A. § 3104(15) (West 2002). VA regulations provide for independent living services as follows: (a) Purpose. The purpose of independent living services is to assist eligible veterans whose ability to function independently in family, community, or employment is so limited by the severity of disability (service and nonservice-connected) that vocational or rehabilitation services need to be appreciably more extensive than for less disabled veterans. (b) Definitions. The term independence in daily living means the ability of a veteran, without the services of others or with a reduced level of the services of others, to live and function within the veteran's family and community. (c) Situations under which independent living services may be furnished. Independent living services may be furnished: (1) As part of a program to achieve rehabilitation to the point of employability; (2) As part of an extended evaluation to determine the current reasonable feasibility of achieving a vocational goal; (3) Incidental to a program of employment services; or (4) As a program of rehabilitation services for eligible veterans for whom achievement of a vocational goal is not currently reasonably feasible. This program of rehabilitation services may be furnished to help the veteran: (i) Function more independently in the family and community without the assistance of others or a reduced level of the assistance of others; (ii) Become reasonably feasible for a vocational rehabilitation program; or (iii) Become reasonably feasible for extended evaluation. (d) Services which may be authorized. The services which may be authorized as part of an IILP (Individualized Independent Living Plan) include: (1) Any appropriate service which may be authorized for a vocational rehabilitation program as that term is defined in § 21.35(i), except for a course of education or training as described in § 21.120; and (2) Independent living services offered by approved independent living centers and programs which are determined to be necessary to carry out the veteran's plan including: (i) Evaluation of independent living potential; (ii) Training in independent living skills; (iii) Attendant care; (iv) Health maintenance programs; and (v) Identifying appropriate housing accommodations. (e) Coordination with other VA elements and other Federal, State, and local programs. Implementation of programs of independent living services and assistance will generally require extensive coordination with other VA and non-VA programs. If appropriate arrangements cannot be made to provide these services through VA, other governmental, private nonprofit and for-profit agencies and facilities may be used to secure necessary services if the requirements contained in § 21.294 are met. 38 C.F.R. § 21.160 (2013). VA regulations also provide requirements for participation in a program of independent living service as follows: (a) Approval of a program of independent living services. A program of independent living services and assistance is approved when: (1) The VA determines that achievement of a vocational goal is not currently reasonably feasible; (2) The VA determines that the veteran's independence in daily living can be improved, and the gains made can reasonably be expected to continue following completion of the program; (3) All steps required by §§ 21.90 and 21.92 of this part for the development and preparation of an Individualized Independent Living Plan (IILP) have been completed; and (4) The VR&E Officer concurs in the IILP. (b) Considerations for the VR&E Officer. The VR&E Officer will consider the following factors in administering programs providing independent living services: (1) If VA resources available limit the number of veterans who may be provided a program of independent living services and assistance, the first priority shall be given to veterans for whom the reasonable feasibility of achieving a vocational goal is precluded solely as a result of service-connected disability; and (2) To the maximum extent feasible, a substantial portion of veterans provided with programs of independent living services and assistance shall be receiving long-term care in VA medical centers and nursing homes. 38 C.F.R. § 21.162 (2013). VA's General Counsel has held that VA has the authority to provide services and assistance of a recreational nature as a component of an eligible program of independent living services; and that VA has the authority, and responsibility, to provide all services and assistance deemed necessary on the facts of the particular case to enable an eligible veteran participating in such a program to live and function independently in his or her family and community without, or with a reduced level of, the services of others. This includes the authority to approve, when appropriate, services and assistance that are in whole or part recreational in character when the services are found to be needed to enable or enhance a veteran's ability to engage in family and community activities integral to achieving his/her independent living program goals. It was further noted that the applicable statutes provide VA a great deal of discretion in determining the nature and scope of services needed by a veteran in an independent living services program. VAOPGCPREC 34-97. VA's General Counsel subsequently reiterated that VA has both the authority and the responsibility to provide all services and assistance deemed necessary on the facts of a particular case to enable an eligible veteran participating in an independent living program to live and function independently in his family and community without, or with a reduced level of, services from others. It was further noted that the operative word as to this matter was "necessary" and independent living services (to include services that may have a recreational component) provided to the veteran must be "vital" to achieving the independent living program goal, not merely desirable or helpful. VAOPGCPREC 6-2001. In this case, VA records show the appellant has established entitlement to compensation for intervertebral disc syndrome (40 percent), major depression (30 percent), limitation of extension of the right knee (20 percent), limitation of flexion of the right knee (20 percent), limitation of flexion of left knee (20 percent), and sinusitis (10 percent). The appellant has a combined 90 percent rating and he has been found to be unemployable. After previously being provided vocational rehabilitation benefits, the appellant once again applied for benefits in October 2010. As part of his request for benefits, the appellant asked that VA purchase for his use a massage chair, a desktop computer, a desk, and a recumbent exercise bicycle. The appellant requested that these items be provided to him pursuant to the Independent Living Program. The appellant has written that the items which he has requested will "support and assist with my everyday living needs." In January 2011, the appellant underwent an evaluation by a Vocational Rehabilitation Counselor along with an Independent Living Program Evaluation. The counselor "set aside" the previous status of rehabilitation. The counselor further determined that the appellant was "entitled" to VR&E Services, that he had a serious employment handicap, and that he was unable to achieve any type of vocational goal. With respect to the Independent Living Program Evaluation, the evaluator noted that a massage chair might temporarily help the appellant decrease some pain produced by his service-connected disorders. The relief, however, would only be temporary and the evaluator concluded that the appellant would better be served by having massage therapy on specific parts of his body, such as the knees or back. The appellant was capable of cleaning his home, meeting with friends, and going out into the community. Upon conclusion, the occupational therapist wrote, "[The appellant] did not have independent living needs at this time. He is independent in his activities of daily living and managing well. . . ." Based on the evidence of record, the Board finds that a massage chair, a desktop computer, a desk, and a recumbent exercise bicycle are not demonstrated to be necessary or vital for the appellant to maintain maximum independence in daily living. The evidence clearly shows the appellant has some mobility impairment but there is nothing in the record showing that the appellant has experienced a substantial loss of independence even if his disabilities have become more disabling. There is no evidence that his disabilities have led to a loss of independence. With respect to the provisions of 38 C.F.R. Section 21.162 (2013), the Board notes that this regulation requires that a VR&E officer concur in the creation of on Independent Living Program. It is clear from the record that the appellant's VR&E officer considers that appellant does not need any additional aids that would assist with him being more independent. Although VA has wide discretion in the types of equipment and services to be approved, in making a determination for approving such the services provided must be vital to achieving the independent living goal, not merely desirable or helpful. See VAOPGCPREC 6-2001. In this instance, although a massage chair, desktop computer, a computer desk, and a recumbent bicycle might be desirable, they are not shown to be vital. Based upon the preliminary independent living needs assessment, and despite the appellant's mental and physical disabilities, he is capable of performing self-care skills and activities of daily living independently. Moreover, he can (and does) leave his home independently, when needed or desired. The appellant has not disputed this. Instead, it appears that the requested items would enrich the appellant's life-yet, they are not necessary or vital, and they are not needed for the appellant to function. The Board recognizes the severity of the appellant's disabilities that were incurred as a result of his military service; however, as the record demonstrates that the requested items are desirable but not necessary, the Board must find that they are not vital to achieving the goals of an Independent Living Services Program. ORDER Entitlement to a massage chair, a desktop computer, a desk, and a recumbent exercise bicycle under the provisions of an independent living program pursuant to Chapter 31, of Title 38, United States Code, is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs